In the Matter of   DEPARTMENT OF JUSTICE U.S. ATTORNEY’S OFFICE DISTRICT OF NEW JERSEY NEWARK, NEW JERSEY	Case No. 98 FSIP 168
and LOCAL 2149, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

ARBITRATOR’S OPINION AND DECISION

    Local 2149, American Federation of Government Employees (AFGE), AFL-CIO (Union), filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under section 7119 of the Federal Service Labor-Management Relations Statute between it and the Department of Justice, U.S. Attorney’s Office, District of New Jersey, Newark, New Jersey (Employer). After investigation of the request for assistance, the Panel asserted jurisdiction and directed that the parties’ dispute over ground rules for a successor collective bargaining agreement (CBA) be submitted to the undersigned for mediation-arbitration by telephone.

    Accordingly, on November 19, 1998, I conducted an arbitration hearing by telephone with the parties’ representatives. During the course of the proceeding, two of the three issues at impasse were voluntarily resolved.⁽¹⁾ On the remaining issue, each side presented arguments and evidence in support of its position. I have considered the entire record, including the parties’ post-hearing briefs. The record is now closed.

BACKGROUND

    The Employer prosecutes Federal criminal matters and defends the Federal Government in civil cases in the State of New Jersey. The bargaining unit consists of about 60 nonprofessional employees who hold positions such as secretary, paralegal, and administrative assistant, in grades ranging from GS-5 to -11; they provide administrative support for the approximately 117 attorneys in the office. The parties’ current CBA, which was to have expired in 1985, has been renewed annually, and remains in effect until the successor agreement is implemented.

ISSUE

    The parties basically disagree over whether: (1) provisions which are tentatively agreed upon during bargaining should be initialed by their Chief Negotiators, and (2) such provisions should be reopened only by mutual consent.

1. The Union’s Position

    The Union proposes the following ground rules:

3. d). Only the Chief Negotiator, or designee, is authorized to commit their negotiating team to agreement on a proposal. Such authority will be in writing and will be presented before beginning the negotiations. The two Chief Negotiators initialing the proposal upon reaching a tentative agreement will indicate commitments. The initialed proposal(s) will not prevent the proposals from being reopened for further negotiations at a later date by mutual agreement of the parties.

8. c). Articles signed off as completed cannot be reopened unless by mutual agreement of the parties. As articles are agreed upon, the Chief Negotiators, or his/her designees, will finalize the article by initialing and dating it at the session. Agreement on sections is tentative until the entire article is fully agreed upon.

If its proposal is not adopted, "either party will never know exactly what was agreed to." The absence of such wording could also encourage bad faith bargaining. While the Union prefers not to speculate as to whether "the signing off of a tentative agreement" is a widespread practice in Federal sector negotiations, its proposal is a standard feature of ground rules agreements where the 2nd District of AFGE is a party.⁽²⁾ Contrary to the position taken by the Employer, the parties "are not buying a house," they "are negotiating a master agreement." Finally, "as a rule, either party should know" that the negotiators have the authority to bargain and to commit the negotiating team to binding agreements on proposals. Otherwise, "either party can continue to change negotiators."

2. The Employer’s Position

    The Employer opposes the inclusion of the Union’s proposal in the final ground rules. Unless the parties mutually agree to be bound by such wording, "the ground rules should remain silent on the point." The Union’s proposal is "counterproductive to an efficient negotiation." Among other things, it "will discourage tentative agreement on proposals and prolong the negotiations" because a "prudent negotiator" would be reluctant to initial off on a proposal without conducting an "exhaustive analysis" of how it might relate to other provisions not yet agreed to. The proposed procedure could also lead to discussions with numerous management officials in various components of the office on a proposal-by-proposal basis prior to final agreement, which would serve to "slow the negotiations dramatically." In addition, the parts of the proposal which would require mutual agreement before an issue can be reopened are troubling. This could embroil the parties in "tangential and unproductive" disputes over whether the ground rules permit a party to reopen a provision.

    The Employer’s position that parties should be able to reach non-binding tentative agreement on proposals is "imminently reasonable." This is how contracts are commonly negotiated "in our personal lives, and in major commercial transactions." Proceeding in this way "makes great sense" because "even unconnected subjects may be the subject of give and take compromise, all of which provides the requisite flexibility to reach final agreement." Its position is supported by "the only example we have found of AFGE’s ground rules with another U.S. Attorney’s Office," an agreement between Local 3966 of AFGE and the Southern District of Texas. Those ground rules expressly provide that "agreement on any proposal is tentative and not binding on either party until agreement is reached on the entire agreement."

    Even if one were to conclude that the Union’s proposal would be useful, it still would be "inappropriate" to impose the Union’s choice of ground rules on management. It is "untenable" to suggest that "a party to a labor negotiation is required to consent to ground rules and that they must agree to these particular provisions . . . in every case."⁽³⁾ In this connection, it was undisputed during the hearing that there are many cases where such wording does not appear in ground rules, as well as instances where parties conduct negotiations without ground rules. To conclude that the Union’s proposal "can be imposed is to accept the extraordinary proposition that in all labor negotiations where a party unilaterally wants such a provision, the other party must agree."

OPINION

    Having carefully reviewed the evidence and arguments presented by the parties on this issue, I find nothing "untenable," "inappropriate," or "extraordinary" about the Union’s position. Its proposal is clearly supported by comparability data and, in my view, provides the more reasonable approach to conducting the parties’ successor agreement negotiations. Preliminarily, while it may be true that Federal sector labor relations would be better off without ground rules, especially impasses over ground rules, that is not the issue before me. To the extent the Employer implies that it cannot be required to agree to written ground rules, or that a third party is without authority to impose them on an unwilling party, it is mistaken.⁽⁴⁾

    The available evidence suggests that the practice of initialing and dating areas of agreement as bargaining proceeds is common. Many parties apparently prefer this approach because its advantages in the Federal sector context outweigh its drawbacks. In this regard, it is not unusual for Federal sector CBAs to contain more than 50 articles, most of which are unrelated. In addition, successor agreement negotiations often do not have a predetermined duration.⁽⁵⁾ In such circumstances, it is beneficial for parties to have a record of agreements which may only be reopened by mutual consent. Rather than resulting in negotiations which are "counter-productive to an expeditious resolution of the issues," the practice can build momentum, and avoid potential future disagreements over whether discussions occurring weeks or months (or sometimes years) before produced a meeting of the minds. As was pointed out to the Employer’s representatives during the hearing, nothing in the Union’s proposal compels them to reach agreement on any of the matters being negotiated. Finally, from the perspective of a third party, the approach also makes sense because any impasse reached during the negotiations would be limited to subjects which were not previously initialed, and not the entire CBA. For these reasons, I will order the adoption of the Union’s proposal.

DECISION

    The parties shall adopt the Union’s proposal.

 

H. Joseph Schimansky

Arbitrator

December 11, 1998

Washington, D.C.

 

1.The parties agreed that the Union’s negotiating team would receive a combined total of up to 64 hours of official time to prepare for bargaining, and the Union agreed to withdraw its proposal that “the Chief Negotiator for each party may speak at his/her discretion. The other negotiators will only speak when recognized by their Chief Negotiator.”

2.In support of its position, the Union provided three ground rules agreements containing similar or identical wording, and numerous instances where parties’ chief negotiators signaled agreement by initialing individual provisions and/or entire articles. It also submitted three letters in which individuals were designated as chief negotiators.

3.The Employer also “questions whether it can be required to agree to written ground rules of any kind,” and suggests “that the parties should be free to mutually agree to enter written ground rules or to proceed without them.”

4.In this regard, the Federal Labor Relations Authority has determined that ground rules negotiations are part of the collective bargaining process and an inherent aspect of a party’s obligation to bargain in good faith. Therefore, the Statute allows a party to insist on negotiating ground rules prior to substantive bargaining, regardless of whether such bargaining involves a term CBA or changes in conditions of employment made during the term of a CBA. See, e.g., Harry S. Truman Memorial Veterans Hospital, Columbia, Missouri and American Federation of Government Employees, AFL-CIO, Local 3399, 16 FLRA 944 (1984), and cases cited therein.

5.Indeed, the parties here apparently have agreed to a ground rules provision which states that negotiations will occur “on Fridays until a comprehensive agreement between the Parties is reached.”